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«DIVORCE AND THE WELFARE OF THE CHILD IN JAPAN Matthew J. McCauley† Abstract: Current Japanese legal institutions are ill-equipped to resolve the ...»

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MINPŌ [CIV. C.] art. 819, para.1-2 (In kyōgi rikon, the parents must choose one parent to have sole custody, and in judicial divorce, the judge must choose one parent to have sole custody.).

MINPŌ [CIV. C.] art. 819 para. 1-2.

Takashi Shimizu, Shinken to Kangoken no Bunri, Bunzoku, 1100 HANREI TAIMUZU 144 (2002).

Certain rights have been explicitly designated as shinken: the right to decide the child’s residence, the right to discipline the child, the right to consent to employment, and the right to administer the child’s assets and legally represent the child. However, this list is not exhaustive and modern law recognizes a much wider spectrum of parental rights. Shimizu, supra note 26, at 144; MINPŌ [CIV. C.] arts. 821-24.

594 PACIFIC RIM LAW & POLICY JOURNAL VOL. 20 NO. 3 the same parent after divorce, but they can be split between the parents under special circumstances.28 Splitting these rights is rare, but sometimes parents will choose to divide the rights in order to achieve quasi-joint custody.29 As the story of Richard Cory illustrates, problems associated with the lack of joint custody are worsened by inherent biases in the Japanese custody system against fathers and non-Japanese citizens. 30 Japanese government statistics from 2009 show a strong preference for the mother in divorce, with the mother getting sole custody over all children in 82% of divorces with children involved. 31 While fathers historically had control over the children, 32 most cases today are decided in favor of the mother under the controversial “tender-years doctrine.”33 This doctrine draws its justifications from culture and biology, and its adherents argue courts should not deprive the mother custody of her young children unless there is clear evidence that the mother is not fit to care for her children.34 The doctrine remains controversial among scholars, but has generally fallen out of favor in the United States as discriminatory against men.35 Two studies conducted by Professor Bryant at the UCLA School of Law, the first from1981 to 1984 and the second in 1992, found a similar trend against non-Japanese citizens. 36 The 1981 study found that courts placed a priority on maintaining the Japanese identity of children after divorce, even at the expense of their non-Japanese identity.37 The second 1992 study found more cases where courts were willing to award custody to a non-Japanese mother, but there was still little recognition of “blended MINPŌ [CIV. C.] art. 766 (generally used in situations where the parents are unable to care for the child but still wish to retain legal custody).

ARICHI, supra note 13, at 288.

Cory, Behind the Facade of Family Law, supra note 1.

Japanese Supreme Court statistics show that out of 251,136 divorces in 2009, 107,302 did not involve children, the mother got custody of all children in 118,037 cases, the parents split the children in 5,202 cases, and the father got custody in 20,595 cases. 2009 COURT STATISTICS, supra note 24.

For example, in 1965, before the development of a strong preference for mothers, an all-male panel of judges denied visitation to the mother. Tōkyō Kōtō Saibansho [Tōkyō High Ct.] Dec. 8, 1965, Sho 40 (ra) no. 11, 18(7) KATEI SAIBAN GEPPŌ [KASAI GEPPŌ] 31 (Japan).

Shizuoka Katei Saibansho [Shizuoka Fam. Ct.] Oct. 7, 1965, Sho 40 (ie) 687, 18(3) KATEI SAIBAN GEPPŌ [KASAI GEPPŌ] 81 (Japan) (ruling that, barring special circumstances, it is best for the mother to take full custody); Jones, supra note 14, at 220-21.

Cathy J. Jones, The Tender Years Doctrine: Survey and Analysis, 16 J. FAM. L. 695, 697-98 (1977).

MARY ANN MASON, THE CUSTODY WARS 2-3 (1999); Ramsay Laing Klaff, The Tender Years Doctrine: A Defense, 70 CAL. L. REV. 335, 335-36 (1982).

Taimie L. Bryant, Family Models, Family Dispute Resolution and Family Law in Japan, 14 UCLA PAC. BASIN L.J. 1, 18-19 (1995).

Id.

JUNE 2011 DIVORCE AND THE WELFARE OF THE CHILD IN JAPAN 595

families” or “bicultural identity.” 38 These trends, combined with no provision for joint custody, make it highly likely that divorcing fathers and non-Japanese citizens will be deprived of all parental rights following divorce.

C. The Kyōgi Rikon System Provides No Oversight Kyōgi rikon, literally “divorce by conference,” is a system allowing divorcing parties to decide all terms of divorce, including all issues of child custody and visitation, without any judicial oversight. 39 The law only requires the parties agree to divorce, determine the custody of their children, and submit a short form to their local municipal office, providing a simple and fast path to divorce that is used by almost 90% of divorcing couples today.40 The institution of kyōgi rikon has existed for over a century, originating in the Meiji Civil Code of 1890.41 The 1890 Civil Code required a married couple to obtain the approval of parents and grandparents on both sides of the family as well as their legal guardian before divorce would be permitted.42 Japanese divorce law saw a major shift just a few years later with the new Meiji Civil Code of 1898.43 This new law no longer required outside consent for kyōgi rikon, effectively replacing traditional safeguards with the ideals of personal freedom and the freedom to contract.44 The law in effect today was enacted in 1959, and is essentially unchanged from the Meiji Civil Code of 1898.45 Although a great majority of divorces are settled through kyōgi rikon, Japanese law does provide for divorce through conciliation, or litigation if Id.





MINPŌ [CIV. C.] art. 763 (establishing kyōgi rikon); id. at art. 766 (allowing parents to unilaterally make decisions regarding children).

YOSHIKI ŌSHIMA & HIROSHI YOSHIOKA, KEKKONSURU MAE NI, RIKONSURU MAE NI: KEKKON TO

RIKON NO HŌRITSU CHISHIKI 94 (1986); 2009 COURT STATISTICS, supra note 24.

Ueno, supra note 12, at 57. The Old Meiji Civil Code was only in force for a few years until the Meiji Restoration, and was highly controversial due to its codification of ancient family rules that demanded unconditional obedience. Fujiko Isono, The Evolution of Modern Family Law in Japan, 2 INT J.L. & FAM. 183, 185 (1988).

Ueno, supra note 12, at 57.

Id. This new civil code was created after the Meiji Restoration in a push to remake Japan into a modern nation state. Isono, supra note 41, at 189.

Meiji Minpō [Meiji Civil Code] art. 808; Ueno, supra note 12, at 57.

Compare Meiji Minpō [Meiji Civil Code] art. 808 with MINPŌ [CIV. C.] art. 763 (the only noticeable difference in the text of the two laws is a linguistic modernization to conform to post-war language reforms); Ueno, supra note 12, at 57.

596 PACIFIC RIM LAW & POLICY JOURNAL VOL. 20 NO. 3 conciliation fails.46 Divorce conciliation offers a non-binding forum where the parents can bring their dispute before a family court judge or a twoperson committee of licensed attorneys who specialize in family law. 47 While the court can order an investigator to conduct objective fact finding, the information can only be used to convince the parents to take a particular course of action and the final decision still rests with the parents.48 A case may only proceed to litigation after a conciliation has failed,49 and litigation is only available in a limited subset of cases. 50 Divorce litigation does provide a full forum for dispute resolution that is more familiar to Western lawyers, but it is only used in roughly 1% of all cases every year, making its overall effect very limited.51

III. THE CURRENT JAPANESE DIVORCE SYSTEM HARMS BOTH PARENTS AND

CHILDREN

Japanese family law is coming under scrutiny both domestically and internationally because it fails to protect noncustodial parents and children, and arguably violates Japan’s treaty obligations. In addition, this system fails to take advantage of the benefits of broad visitation rights and joint custody. Part A will examine how Japan’s failure to recognize visitation harms children and arguably violates international law. Part B will show Kaji Shinpanhō [Domestic Causes Inquiries Act], Law No. 152 of 1947, art. 18, para. 1, 2 (Japan) (conciliation is generally mandatory before courts will hear a dispute). In 2009, 9.7% of divorces were resolved through conciliation and only 1-2% of cases went to court. 2009 COURT STATISTICS, supra note

24. The word “chōtei” has been translated as “conciliation,” “arbitration,” and “mediation” by different authors because it is difficult to find a precise translation for the word in English. This paper uses the word “concilitation” because it is the term used in official Supreme Court publications. See, e.g., Supreme Court of Japan, DOMESTIC RELATIONS CASE PROCEEDINGS, available at http://www.courts.go.jp/english/proceedings/pdf/domestic_personal/chart.pdf.

Kaji Shinpanhō [Domestic Causes Inquiries Act], Law No. 152 of 1947, art. 3 para. 2 (Japan); Id.

at art. 22, para. 1 (Japan). This committee is generally composed of one male and one female, competent in issues of resolving family disputes, have rich life experience, knowledge and deep insight, are ideally between forty and seventy years of age, and are appointed by the court for a term of two years. Bryant, supra note 36, at 9.

Satoshi Minamikata, Resolution of Disputes over Parental Rights and Duties in a Marital Dissolution Case in Japan: A Nonlitigious Approach in Chōtei (Family Court Mediation), 39 FAM. L.Q.

489, 494 (2005); Jones, supra note 14, at 185 (investigators must pass a test administered by the Supreme Court, but no degree in psychology or any related subject is required).

Kaji Shinpanhō [Domestic Causes Inquiries Act], Law No. 152 of 1947, art. 24, para. 1 (Japan).

A court may only grant divorce on five specific grounds: infidelity, malicious abandonment, when the spouse has been missing for over five years, severe mental illness, or any other condition that would make continuation of the marriage a severe burden. MINPŌ [CIV. C.] art. 770 (enumerating the grounds for judicial divorce). Also, the responsible party is not allowed to file for divorce. Saikō Saibansho [Sup. Ct.] Oct. 15, 1963, Sho 35 (o) no. 985, 68 SAIKŌ SAIBANSHO MINJI HANREISHŪ [MINSHŪ] 393 (Japan).

Jones, supra note 14, at 196; 2009 COURT STATISTICS, supra note 24.

JUNE 2011 DIVORCE AND THE WELFARE OF THE CHILD IN JAPAN 597

how the enactment of a joint custody system will help to hold both parents responsible for their children. Part C will look at how the kyōgi rikon system is open to abuse.

A. Japan’s Failure to Recognize Visitation as a Right Is Harmful to Parents and Children, and Arguably Violates International Law In cases where one parent retains sole custody, visitation rights are essential for the welfare of the child. Visitation allows the child to maintain contact with both parents, often helping to protect the child against the pain of loss, provide a sense of presence that can diminish the child’s sense of vulnerability, and spread feelings of frustration and conflict that would otherwise be directed toward only one parent. 52 Visitation also allows noncustodial parents to maintain relationships with their children, protecting a basic right of parenthood.53 These arguments stem from attachment theory, which is used throughout the world to develop policies and laws relating to children. 54 This theory argues that children depend on an attachment to a primary attachment figure for development and survival, and that young children often develop such a relationship with both their parents.55 It is clear that severing this bond between parent and child is detrimental to the child’s personal development, and visitation soon after divorce has proven invaluable in putting the fears of children at ease.56 Some scholars argue attachment theory leads to the opposite conclusion, that visitation provides no benefit and is potentially harmful for children. This argument is based on the idea that a hierarchy exists in these attachment relationships, usually with the mother at the top.57 Their theory recommends that custodial parents make decisions regarding visitation and that young children should not be made to have overnight stays with their noncustodial parent.58 However, recent research has shown that, while it is impossible to make all-encompassing conclusions, a balanced relationship

JUDITH WALLERSTEIN & JOAN KELLY, SURVIVING THE BREAKUP: HOW CHILDREN AND PARENTS

COPE WITH DIVORCE, 239 (1980).

Id. at 132-34.

Michael Rutter & Thomas G. O’Connor, Implications of Attachment Theory for Child Care Policies, in HANDBOOK OF ATTACHMENT: THEORY, RESEARCH, AND CLINICAL APPLICATIONS 823-44 (Jude Cassidy & Phillip R. Shaver eds. 1999); Judith Younger, Post-Divorce Visitation for Infants and Young Children—The Myths and the Psychological Unknowns, 36 FAM. L. Q. 195, 198 (2002).

Younger, supra note 54, at 198.

Steven L. Novinson, Transition: Post Divorce Visitation: Untying the Triangular Knot, 1983 U.

ILL. L. REV. 121, 146-48 (1983).

Younger, supra note 54, at 200-01.

Novinson, supra note 56, at 141-43.



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